Blackfeet win back water rights, but the work has just begun

A map showing the drainages included within the Blackfeet Water Compact settlement. The Blackfeet now control approximately 90 percent of the water coming from these streams, with the authority to sell the water that they are unable to use.(Photo: Courtesy Blackfeet Tribe)

After 38 years of hard-fought negotiations, the Blackfeet people can finally look with satisfaction upon passage of a comprehensive and binding agreement guaranteeing control of the tribe’s water resources for generations to come.

On April 20, tribal members voted overwhelmingly to approve passage of the Blackfeet Water Compact – a complex document that, among other things, recognizes the tribe’s control over more than 90 percent of all the water that flows down from the Rocky Mountains and crosses Blackfeet Indian Reservation land each year.

Sweetening the deal is the promise of $471 million in state and federal funding, money that will go a long way to improving and expanding irrigation, community drinking water systems, fisheries, recreation and tribal land acquisition on the Blackfeet Indian Reservation.

But while the Blackfeet people can rightfully pause to enjoy the historic vote, in many respects the hard work has only just begun.

“This vote was so important from so many perspectives,” said Blackfeet Water Resources Director Gerald “Jerry” Lunak, “but there’s a whole other list of things that need to take place moving forward. This is going to fall into the hands of future leadership as far as turning the benefits of this into a reality.”

While the settlement earmarks dollars for a number of specific projects, such as reconstruction of the Four Horns Dam and renovation of recreational facilities at the Chewing Blackbones campground on the shores of Lower Saint Mary Lake, a majority of the development projects have yet to be defined.

According to Blackfeet Tribal Vice Chairman Terry Tatsy, the vague nature of the projects list was an intentional component of the compact – a tacit guarantee that control over such an enormous responsibility would not be vested in a single tribal administration.

“We understand the great potential for the advancement of our people, with better irrigated fields, better water delivery systems – and along with this there’s going to have to be an education component,” Tatsy said. “I think the one thing that our people need to understand is that they are the ones who are going to make the decision on how these resources are spent. It’s not going to be the tribal committee, it’s not going to be the governance, it’s going to be them.”

The Four Horns Dam on the southern end of the Blackfeet Indian Reservation is scheduled to be completely reconstructed. Water from this impoundment will be used to expand agriculture within the Fisher Flat Irrigation Project.(Photo: Courtesy Blackfeet Water Resources Department)

“We have a fiduciary responsibility to act in the best interests of the Blackfeet people,” said Tribal Chairman Harry Barnes, “and how you make that work is to ask them what they want.”

Barnes said the Blackfeet Tribal Business Council has already outlined plans for continuing community outreach sessions – an opportunity for tribal officials to meet directly with tribal members to gather input on where the greatest needs are. Some of those needs have already been well established based upon prior experience.

According to Barnes, the reservation communities of Heart Butte and Babb have been under near continuous boil orders for their drinking water in recent years, while residents of the small community of Blackfoot run out of drinking water almost every summer when their wells dry up.

“That would be of the highest priority – to make sure our people have sufficient clean water for their communities,” Lunak said. “The initial phase will be to go to Heart Butte and consult with community members to start laying out the plan on how we’re going to make that a reality. We need to get a real good snapshot of what the reliability of the existing systems are ans where we can upgrade those to meet the needs of the community.”

But while clean drinking water is undoubtedly the highest priority, a lack of certainty over when and where the bulk of the promised federal dollars will come from is surely the biggest obstacle.

Under the terms of the compact, the federal government has until January 2026 to complete its guaranteed contribution of $422 million, but at this point none of those dollars has been appropriated. Further complicating that process is the “Pay-as-You-Go Act,” a federal law enacted in 2010 requiring any additional federal spending be offset by cuts or added revenue from other sources.

What it comes down to is more lawyers and more lobbyists. The Blackfeet Tribe has already engaged representatives to shake the rafters in Washington, D.C., looking for any excess dollars that might fall the tribe’s way and fulfill the federal government’s obligation.

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Cut Bank Creek passes through the center of the Blackfeet Indian Reservation and is one of the primary drainages contained within the Blackfeet Water Compact.(Photo: TRIBUNE PHOTO/KRISTEN INBODY)

“We have a lobbyist back there that’s already starting this process,” Barnes said. “We have to find money within the other federal government’s departments to offset that cost. You can take money from anybody except the Bureau of Indian Affairs (BIA). They don’t want the Blackfeet Tribe stealing money from the Crow or Navaho tribes. That’s somewhat of a lengthy process, but it’s one we’re going to undertake.”

The Blackfeet have some advantage in the support of both of Montana’s senators, and the newly installed influence of former Montana Rep. Ryan Zinke as secretary of the interior.

“Both Senator Daines (R-Mont.) and Senator Tester (D-Mont.) have recommended to Secretary Zinke that we try and fund the compact at $100 million in 2018,” Barnes said.

Access to the state of Montana’s $49 million contribution is a little less problematic.

“The state contribution has actually already been appropriated,” said Tribal Attorney Jeannie Whiteing, “either as dollars deposited into the Blackfeet settlement account or through authorization for bond funds.”

Those dollars are almost entirely earmarked for reconstruction of the Four Horns Dam, and to compensate the Blackfeet for 15,000 acre feet of water that will be diverted annually out of Birch Creek for the next 25 years, and piped down stream to compensate members of the Pondera County Canal and Reservoir Company.

“What I like to tell people is that there are now about 30 Indian water settlements that have been completed, and the United States has never failed to fund any of them,” Whiteing said of her confidence that the federal government will eventually live up to its obligations to the Blackfeet people. “Based upon the track record that we see in other settlements ... the government has always funded them.”

All these components are critical to the continued confidence of the Blackfeet people in a process of negotiation and compromise that has now extended for more than a century and a half.

“For the first time in 165 years – since the signing of the 1855 Treaty – finally, finally the Blackfeet people will be able to use their water resources for the improvement of our youth, for our grandchildren and for our great-grandchildren down the road,” said Blackfeet Tribal Secretary Tyson Running Wolf. “We now have a real opportunity to build a better life for the people on the Blackfeet Reservation.”